2017 Annual Open Meeting Transcript
DAVID S. FERRIERO: -- of this office is also a testament to the professionals on the National Archives leadership team, who have provided sound guidance and support, and I want to especially thank Deb Wall, my Deputy Archivist; Jay Bosanko, our Chief Operating Officer; Gary Stern, the Agency’s General Counsel; and Jay Trainer, our Executive for Agency Services, for their support.
In its latest update to the federal Freedom of Information Act, which was signed into law in June of 2016, Congress expanded OGIS’s dispute resolution role in the FOIA process, and strengthened the office’s mandate to review policies and procedures, and identify methods to improve compliance.
Before I turn the program over to Alina, I want to recognize Jason R. Baron. Jason R. Baron. Jason spent many years at the National Archives as Director of Litigation, and as an expert on the preservation of electronic records, so thanks. Welcome home, Jason.
Thank you all for joining us today to hear about OGIS’s reports and reviews, and we look forward to hearing and reading the comments you submit, and I’ll now turn the program to Alina Semo, to provide an update on OGIS’s activities during this past fiscal year. Alina.
ALINA M. SEMO: Good morning, everyone. I’m really happy to be here today, and thanks everyone for getting up early. I’m not a morning person, so (laughs) this is quite a feat for me to be here this early, as well. This is our first annual open meeting, and we’re very excited you could all come. We’re going to try to stay on schedule today, even though we got started a few minutes late. We have a very full day today, and I hope those of you who are willing to stick around -- at 10:00 a.m. we’re going to start our FOIA Advisory Committee meeting, and we also welcome you to stay for that.
So, last year Congress amended FOIA to add a new requirement for OGIS to conduct an annual meeting that is open to the public on the review and reports of our office, and to allow interested persons to appear and present oral or written statements at the meeting. So, as I said, this is our first annual meeting, and we are very pleased that Congress has given us yet another avenue to showcase all the great work that OGIS has been doing. And I’m very much looking forward to providing you with an update on OGIS’s work, and this past fiscal year in particular, and afterwards there’ll be time for comments. Please note that we are broadcasting this meeting via National Archive’s YouTube channel, and we will also have a transcript of this meeting. If you are unable to join us in person, please feel free to submit your written comments to our website, firstname.lastname@example.org, at any time following the meeting.
So, fiscal year 2016 in review. And I’m s-- I forgot to mention, we have our annual report, Exhibit A, (laughs) out on the tables. We’re very happy to have put that out this year. I’m sure all of you here have already memorized it. If not, there will be a quiz. Before I launch into our overview, I want to take a minute to recognize the amazing OGIS staff, without whom none of this could be possible. And I’m going to ask them to stand up and embarrass themselves for one second. First, Deputy Director Nikki Gramian. Thank you, Nikki. (applause) Nikki. We have our new Attorney Advisor, Sheela Portonovo. (applause) Our Compliance Team Member, Amy Bennett. (applause) She’s also our DFO for the FOIA Advisory Committee. Our Mediation Team Facilitator, Christa Lemelin. (applause) And you can say a virtual hello to our Mediation Team Lead, Carrie McGuire, who’s watching us on YouTube. So hi, Carrie. (applause)
We should start off by mentioning what undeniably was the biggest change for OGIS during fiscal year 2016, and that was the passage of the FOIA Improvement Act of 2016. That -- those amendments expanded OGIS’s role in providing dispute resolution throughout the FOIA process, and reinforced our mandate to review policies and procedures, and identify strategies to review compliance. As you will likely notice at a few different points during my presentation today, the 2016 amendments have had a significant effect on the volume of OGIS’s work. Today, and tracking our annual report, I will provide an overview of fiscal year 2016 outreach and collaboration efforts, our dispute resolution program, and our compliance programs, and recommendations that we have made in our annual report.
So, outreach and collaboration. As part of our outreach and collaboration efforts, OGIS continued to support the National Archives leadership in open government by taking steps to fulfill our concrete commitments to recognize and modernize the administration of FOIA. The current US Open Government National Action Plan, NAP 4.0, gave OGIS two specific responsibilities out of the total of five commitments that relate to FOIA. The plan was developed and published as part of the United States involvement in the International Open Government Partnership.
First, the National Archives was tasked to increase understanding of FOIA by developing educational resources to teach the next generation about FOIA. To accomplish this, we worked with education experts at the National Archives to create an infographic that explains the purpose of FOIA, and gives a broad outline of the process. This infographic has been integrated into lesson materials posted on the National Archives DocsTeach website. As part of the lesson, students are asked to think about how Agency records relate to FOIA, and how they affect our understanding of historical events like Bloody Sunday in Selma, and whether they think the fact that documents could be released might change the government’s actions.
Second, we are continuing work with the Office of Information Policy at the Department of Justice to meet a commitment to improve agencies’ FOIA webpages.
Another notable outreach effort we launched during fiscal year 2016 was our first Sunshine Week event, in -- right here in the McGowan Theater. In recognition of the 50th anniversary of the signing of the Freedom of Information statute, we were able to display the original FOIA statute signed by President Johnson right here at NARA. We were particularly honored to have Senator Patrick Lahey join us to give us the event’s keynote address, and we very much appreciated being able to have thought leaders like Chief Technology Officer Megan Smith, the Kennedy School of Government’s Archon Fung, and American University’s Andrew Lih right here at McGowan, to share their thoughts on the future challenges and opportunities for open government. We also hosted panel discussions looking at innovation from inside and outside of government. The event was so successful that we have decided to try to make it an annual event.
The most notable impact of the FOIA Improvement Act of 2016 was on OGIS’s dispute resolution program. The 2016 amendments now require agencies to alert requesters to OGIS’s dispute resolution services much earlier in the FOIA process, prior to or during the pendency of an administrative appeal, in addition to at the conclusion of the administrative process. As you can see from these graphs, we experienced an immediate and substantial increase in our caseload. The implementation of the amendments led to 142% increase in requests for assistance in the fourth quarter of fiscal year 2016, compared to the number of cases we received during the entire 2015 fiscal year. The surge in demand for our services has continued since the reporting period, and right now we are on course to quadruple our caseload in fiscal year 2017 compared to fiscal year 2016.
In reviewing the cases that are now coming in to OGIS, we have noticed some confusion among requesters as to our role in the FOIA process vis-à-vis Agency FOIA public liaisons, and questions about the types of assistance that OGIS can provide. To help clear up some of this confusion, we have created a new two-page handout that describes who we are and what we do. Copies are available right outside on the table, along with the annual report. The handout also includes a chart that describes who we are -- that describes -- sorry -- the kinds of assistance we can provide, versus the assistance FOIA public liaisons are able to provide at various points in the administrative FOIA process. You can also find the handout in our OGIS toolbox in the resources section of our website, and feel free to help yourself to a copy, and hand them out to friends and colleagues.
Since March 2010, OGIS has offered free dispute resolution skills training for FOIA professionals, which has been uniformly met with high praise from all participants. We offer a daylong training session here at the National Archives twice each year. We just had our most recent session two days ago, very well attended, and, again, a great success. We also provide tailored training for agencies upon request. During the past fiscal year, 33 FOIA professionals from 22 agencies -- I’m sorry, from 12 agencies -- just bumped up the number -- and departments participated in our daylong training session. OGIS also provided agency training specifically to FOIA employees at the National Labor Relations Board, and taught a session on effective communication skills at the Department of Labor FOIA training session. In total, from fiscal year 2011 to fiscal year 2016, OGIS has provided this training to 750 professionals and nearly 60 agencies.
Our compliance program continued to mature during fiscal year 2016. OGIS issued agency assessments for three DHS components: the Transportation and Security Administration, TSA; Customs and Border Protection, CBP; and the United States Secret Service. Our agency assessment program is based on the knowledge that successful FOIA programs have three main factors in common: one, they are well managed; two, they use technology effectively; and three, the FOIA staff communicates well with the requester community. During an agency assessment, we document a FOIA programs management practices, use of technology and communication, and make recommendations for improvement. Our fiscal year 2016 assessments continued to show the importance of strong management practices and leadership support to a program’s success. Our CBP assessment in particular demonstrated how these two factors contributed to CBP’s ability to reduce its backlog by 74% in fiscal year 2015. Adopting our management recommendations also helped TSA reduce its backlog in four months after their adoption.
In the area of technology, we documented the importance of finding the right technology to meet the program’s needs. So, for example, CBP credited its move to FOIAOnline with helping it to better manage its high volume of requests, and at the Secret Service, On the other hand, we documented issues with the agency’s FOIA processing and tracking system that were so severe that processors sometimes reverted to using tape to hand redact documents. We also noted the importance of teaching FOIA staff how to use technology properly.
Communicating with requestors continues to be a low-cost way to improve a FOIA program’s performance. OGIS found that a lack of response from the agency continued to be a factor in most of the lawsuits filed against the FOIA programs that we reviewed. In fiscal year 2016, we also published our first governmentwide issue assessment. This assessment looked at the use of “still interested” letters to administratively close FOIA requests. We issued reports and recommendations on the subject based on a review of historical data and in-depth interviews with selected FOIA programs. During this review, we noted that available data shows that relatively few requests are closed using “still interested” letters, but that the data does not capture requestors’ frustration with that practice. We also noted a lack of transparency with use of these letters, and made recommendations to address this issue.
As I noted just a few minutes earlier, our agency assessments include recommendations to strengthen the FOIA program. One hundred and twenty days after we publish our assessment report, we follow up with the agency to learn what steps they have taken to respond to our recommendations. Agencies are given 60 days to respond to that inquiry, and after we’ve received their responses we evaluate their answers to our recommendations and close out recommendations that agencies have, indeed, addressed. During fiscal year 2016 agencies addressed approximately 97% of our recommendations. I’m also happy to report that since the end of the reporting period, and after we had published our report, we received a response from the Secret Service, and next year I anticipate that all of the circles shown here will be checked off.
Our fiscal year 2016 annual report includes one regulatory recommendation, which is based on the work of the 2014-2016 FOIA Advisory Committee. The FOIA Advisory Committee was launched by the National Archives in 2014 to bring together FOIA experts both inside and outside of government to collaboratively develop recommendations to improve the administration of FOIA. During its first term, the FOIA Advisory Committee addressed proactive disclosure, oversight and accountability, and fees. Based on the suggestion of the Fees Subcommittee, the FOIA Advisory Committee unanimously approved a recommendation to the Archivist of the United States that the Office of Management and Budget, OMB, update its 1987 fee guidelines. The Archivist submitted that recommendation to OMB in August of 2016.
In 2016, the Archivist also renewed the FOIA Advisory Committee’s charter for another two-year term, through 2018. And again, as I stated earlier, if you’re interested in learning more about the FOIA Advisory Committee, I encourage all of you to stay; at 10:00 a.m. we’re going to begin our quarterly meeting. We will also be livestreaming that meeting, as well, on the YouTube channel, and you may also visit our website for Committee-related documents and additional information.
So, before I move to any public statements, I want to mention some noteworthy events and dates that are coming up for us in the near future. First and -- that affects all of us on the -- at my staff is our physical move in early May. We’re moving one building over, from 800 North Capitol Street to 725 North Capitol Street Northwest. It’s the Government Publishing Office, GPO, building. While we do hope there will be minimal disruptions to our operations, please be patient with us, as we will be busy packing up the week of May 1st, and unpacking and settling into our new home in the GPO building the week of May 8th.
We also hope that as of May 15th our website address will be changing so that we are part of the www.archives.gov family. Please keep an eye out for a blogpost that will be giving you a preview of our new look and feel of our website, and explain how to update any bookmarks you have for OGIS’s webpages.
Together with the Office of Information and Policy at DOJ we are exploring dates for the next Chief FOIA Officer Council Meeting. OGIS and OIP co-chair that council as a result of the 2016 FOIA Improvement Act amendments. As soon as we have a confirmed date and time we will add that information to our website, as well. You can also keep up with announcements, like the date of the next Chief FOIA Officer Meeting and future Advisory Committee meetings, by reading our weekly blogs and following us on Twitter.
So, I’m -- we’re almost ready to open up the audience for any statements. Please feel free to go ahead and move to no microphones that would normally be there, (laughs) to -- and provide your statements. We very much appreciate your interest in and support of OGIS’s work. With that, I hope we will be able to get some microphones and be able to hear from the floor for any public comments. We can use those microphones. Thank you for your help.
(off-mic dialogue; inaudible)
KEL MCCLANAHAN: I am being defeated by technology. Good morning.
ALINA M. SEMO: Good morning. If you could please state your name and your affiliation, that would be great, and thank you for your help with the AV equipment.
KEL MCCLANAHAN: I think I got in the way more than I helped. My name is Kel McClanahan. I am with National Security Counselors. And I was wanting to know what the plans were now that you have such a large increase in your workload. Is the Archivist or anyone going to put in a commensurate increase in your budget?
ALINA M. SEMO: Great question. As you know, the whole government has been under a hiring freeze that was recently only lifted in spirit. At the National Archives, we are continuing to abide by the hiring freeze. I know the Archivist is very committed to supporting OGIS and had previously given us permission to hire an additional employee for the Mediation Team, and -- actually two -- I apologize -- two additional Mediation Team members, as well as one Compliance Team member, but, unfortunately, the hiring freeze has put all of our great plans on hold. We are very happy to be able to welcome a detailee to our office. I’m going to make her stand up. Jill Hudson is here. She just started with us this week. We’re trying to look inhouse for resources that we can use to try to bring our backlog down. We also are happy to welcome two law clerks that are starting next month, who will be with us for the summer, and will also be assisting us with our backlog. So, we’re doing the best we can with what resources we have internally. (whispering) What? Okay. Sorry.
RICK BLUM: All right. Whoops, (laughs) let me -- let me try the steps. You got -- you got hindered by technology; I’m hindered by the steps. My name is Rick Blum, and I’m director of something called the News Media for Open Government. We used to be called the Sunshine in Government Initiative. And I wanted to first thank you for having this annual meeting. And in some ways, it seems a little redundant, given OGIS’s outreach to the public historically, and I know that that outreach will continue. There’s been a lot of opportunities to talk through some of the challenges and some of the issues and some of the plans that OGIS has undertaken. So, I want to appreciate that and acknowledge that and very much appreciate that.
It’s also important to acknowledge, from our view, the support that the office receives from the Archivist, whether it’s, you know, moving from College Park to a place a lot closer to agencies. Now, you’re moving again, but the support that you all receive is vital.
We were part of the effort to encourage Congress to broaden your mandate, and I think that the demand increase that you’re seeing is not really a surprise, but it’s part of the effort to put in place that broadened mission and scope and role for the office, because we do see it as a feedback loop. I think the other thing to mention from our perspective is you have a mandate to be more assertive and more independent, in the recommendations, in the programs, in the work that you’re doing. And I think that comes to play with the advisory opinions. You’re -- I think the mandate requires reporting on the number of advisory opinions issued. That’s also just sort of a marker for a more assertive role when agencies are improperly denying requesters. So, I think it’s important just to keep in mind, you know, in our view this is an office that’s an agent of change, and so as we go along, and as you’re making decisions about your regulations, final determinations, whether they’re confidential or not, which we strongly think they should be public, that’s really the role that we see for the office. Thank you.
ALINA M. SEMO: Thank you. Anyone else? Oh.
ADAM MARSHALL: Good morning.
ALINA M. SEMO: Good morning.
ADAM MARSHALL: My name is Adam Marshall. I’m the Knight Foundation litigation attorney at the Reporters Committee for Freedom of the Press. We’re a nonprofit association of reporters and editors based here in Washington, D.C. I certainly, like Rick, appreciate the opportunity to comment today at OGIS’s first annual public meeting. The Reporters Committee has long supported the creation and mission of an ombudsman office to assist reporters and others with requests made under the FOIA. As a member of the Sunshine in Government Initiative, the Reporters Committee was involved in the discussions that helped lay the foundation for OGIS’s creation, and attorneys at the Reporters Committee have used OGIS’s services when representing journalists in FOIA matters, and we’ve regularly informed representatives of the news media about OGIS through our publications, our legal hotline, and our educational events. And Reporters Committee firmly believes that a robust, independent, and assertive FOIA ombudsman benefits requestors and agencies alike.
We are concerned, however, by some aspects of the recently proposed regulations that will govern OGIS’s activities and operations. For example, the draft rule published last December only addresses one of OGIS’s statutorily-defined activities: its role in dispute mediation. While we certainly appreciate the importance of these mediation services, we know that many -- and we know that many journalists have used them in the FOIA process, however OGIS is also tasked with a number of other important roles, including reviewing agencies’ FOIA policies and procedures, making recommendations to Congress, and issuing advisory opinions. OGIS’s proposed regulation does not address any of these other duties, which is perplexing, given that it has been operating for years and is already conducting many of these activities. The reports and other investigations that OGIS has been providing to the public, like that “still interested” letters, are of great use to both the public and agencies, and OGIS’s regulations should reflect those efforts.
We are particularly concerned by the absence of any regulations concerning OGIS’s authority to issue advisory opinions. Despite a clear directive from Congress, empowering OGIS to write advisory opinions, it has yet to issue a single one in its many years of existence. OGIS can and should issue advisory opinions to assist requesters and agencies in the FOIA process. There are numerous examples of how advisory opinions work in the state public records regimes, where they provide important guidance and support for requesters and agencies alike. The public has not been given any explanation as to why OGIS is not fulfilling this important function at the federal level when Congress has made clear that it should.
The Reporters Committee is also troubled by a number of provisions in OGIS’s proposed regulations that seek to impose secrecy on requesters who use its mediation services. For example, the rule states that OGIS’s final response letters are confidential and cannot be used by any party, or rely on them in any subsequent proceedings. Not only is there no legal basis for this provision, but it is contrary to OGIS’s mission, and will limit its usefulness to requesters who often contact OGIS in an effort to work with the agency to resolve their dispute before litigation. If it is -- if those efforts are unsuccessful, it is important that the requester be able to inform the court that they attempted to resolve the dispute through mediation and were unsuccessful, as well as any advisory opinions or other determination that OGIS has made. OGIS should not be attempting to limit the disclosure of this important information.
OGIS occupies a unique and important place in the FOIA process. In a sea of confusing rules, policies, and practices, it can and should be a guiding voice. The Reporters Committee is deeply committed to OGIS’s success, especially for the reporters and journalists who need its assistance to inform the public on the operations of the federal government. We appreciate your consideration of these comments. We’re happy to follow up with you as necessary. Thank you.
ALINA M. SEMO: Thanks.
JASON R. BARON: I’m Jason Baron at Drinker Biddle & Reath, and formerly a director of litigation in the General Counsel’s Office at the National Archives. I didn’t come here with prepared remarks. I’m happy to supplement my remarks with a written statement. Under the leadership of David Ferriero in 2012 and 2011, NARA was very much involved with President Obama, issuing a memorandum to the executive branch, and following with a Management -- a Government Direct-- a Managing Government Records Directive, issued in August 2012. That mandated that by December 31, 2016, agencies would preserve email in electronic form. My understanding is that NARA is collecting reports from agencies on that -- how they have fared and how they have done with that directive. I would like to suggest that OGIS and also the FOIA Advisory Board consider the impact of that directive and that deadline, as well as NARA’s policies with respect to Capstone, on the FOIA process. I would very much be interested in your baking into every interaction with agencies that are processing FOIAs questions about email and about how they are storing email and searching email, with respect to FOIA requests. And I would suggest it’s within the scope of OGIS’s mandate to improve FOIA by linking together the ability of agencies’ efforts to comply with that deadline, and to implement Capstone as an email archiving scheme, into -- integrate it into a better FOIA process to streamline the response time, and do a better job in responding to FOIA requests that particularly involve email. Thank you.
ALINA M. SEMO: Thank you.
SEAN MOULTON: Hi. Good morning.
ALINA M. SEMO: Good morning.
SEAN MOULTON: Sean Moulton with the Project on Government Oversight. I had a few comments and a few questions, so I’ll try and put them in some sort of order. In terms of the -- I, too, am concerned about the increased workload you’re getting in dispute resolution, and one suggestion in addition to the detailee that you have is -- that might be useful is to offer a more extended sort of training program to agencies where they would send over detailees for a period of time, who would get more long-term training in dispute resolution, be able to take that back, but, you know, while they’re at OGIS they could also be helping put down the -- bring down the backlog that you’re experiencing. And then we might see some benefits as they go back to their agencies with better appreciation on how to resolve disputes without going to OGIS. But what I really wanted to talk about was the compliance program, which I think has been pretty impressive. The agencies that you’ve remarked on, and the progress they’ve made, and the number of recommendations that they seem to be implementing is impressive, as well.
So, I know OGIS has been working on some self-assessment materials, as well, for agencies, because you’re limited in how many agencies you can get to, and I’m wondering if those materials are going to be updated based on -- as you get more experience and a better baseline of recommendations and issues that you’re seeing at agencies, to upgrade those self-assessment materials so we might see some of the benefits, again, sort of ripple out to other agencies. And I’m curious whether -- how many agencies you think you’ll be able to get to in fiscal year 2017, and whether or not we’re going to have to see a drop to some extent in compliance work in order to shore up some of the workload in the dispute resolution.
ALINA M. SEMO: Sean, thank you for that question. Great question. It’s something we’re always thinking about, as well. Maybe I’ll take the tail end of your question first to tell you that this year our compliance team is working on the Consumer Financial Protection Bureau currently. They’re doing assessment of that FOIA program. And the other one on deck is the United States Postal Service. So, we’re hoping to finish those up this fiscal year, 2017. At the very tail end of 20-- the fiscal year 2016, but it’s going to spill over into fiscal year... I’m sorry, I just -- it’s going to spill over into fiscal year 2018. We’re going to start Customs and Immigration Services, USCIS, at their invitation. They invited us to go out and take a look at their FOIA program. So certainly, we’re trying to continue to follow and continue our compliance program in a strong and robust way. It’s not our intent to try to slow down. We’re also evaluating whether we could do another global kind of assessment that is more general in nature, as opposed to agency-specific. So even though we’ve actually asked our Compliance Team members to take an all hands on deck approach, and they’ve started pitching in, as well, with our mediation caseload, they’re still very committed to the compliance program, and we continue that work very much. We are continuing to comment on agency regulations as they’re coming out. They’ve kind of slowed down. There was a huge inflow at the beginning, and now I think they’ve really kind of stopped. We also continue to monitor and write compliance types of letters to agencies whom we observe are not writing very clear letters to requesters. That’s one of the issues that we’re seeing a theme in right now. So, to that extent, we’re certainly continuing our compliance efforts. (whispering) He’s back.
SEAN MOULTON: So, I did have a follow-up question. And maybe it’s too early in the process, but I’d be curious as to whether or not, since you’re getting a lot of dispute resolution requests, do you see fewer dispute resolution requests coming from agencies that you’ve done these in-depth compliance work? I mean, are they getting sort of a better rate of satisfaction with their requestors?
ALINA M. SEMO: So, I’m looking over to my Deputy Director, Nikki Gramian, who’s nodding yes, I would say. I can’t tell you we’ve done an analytic study of it, but I think the trend seems to be going in the right direction.
SEAN MOULTON: Terrific. That -- hopefully that’s a good selling point to agencies.
ALINA M. SEMO: Yeah. Thank you. All right, I don’t see anyone else standing up and running to the microphone, so I thank you very much for your time and attention today, and we’re always welcoming new comments about how we can improve our open meeting, which we’re going to try to do annually, and if you have any comments about how next year should be, if we should do anything differently or the same, please let us know. And with that, I conclude our first open meeting. Thank you very much.(applause)